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Lawmakers Approve Flood Measures

What a difference a year can make.

During the final days of the 2006 legislative session, a package of bills intended to force better coordination between flood control and land use planning in the Central Valley and Bay Delta region died amid a deluge of acrimony. This year, however, state lawmakers approved six bills similar to measures that failed last year.

What changed? Certainly the wording and policies of the bills were at least a little different this year. But maybe more important was the careful, behind-the-scenes work of legislative staff members, lobbyists and a few lawmakers. The result is a collection of bills that, for the most part, has the support of local government, planners, developers, environmentalists and flood control experts. "It's a huge deal," said Sande George, lobbyist for the California Chapter of the American Planning Association.

The flood bills appear to be the most important land use measures approved by the Legislature, which concluded its regular session in mid-September. (The governor has since called for a special session on health care and water.) Unlike recent years, lawmakers approved few significant housing bills in 2007, although they did approve one controversial bill that could at the very least make housing element compliance more difficult for some cities. A bill that focused on regional planning and greenhouse gas reduction (SB 375) stalled in the final weeks and is likely to return in 2008.

After the Hurricane Katrina disaster in 2005, many people urged California lawmakers to take action in 2006. They did place $4.1 billion in bonds on the ballot to upgrade flood control systems, but they left land use policy unchanged. Part of the problem last year was that numerous lawmakers tried to take the lead and they did not coordinate their efforts adequately. In the final days of the 2006 session, Sen. Mike Machado (D-Linden), possibly the Legislature's more important player on flood matters, blew up everything.

After the 2006 session ended, Machado met with numerous interested parties and continued to negotiate even after he introduced his cornerstone bill, SB 5, at the beginning of the new session. By increasing the level of flood protection required for urban and "urbanizing" areas, the bill could limit areas for new construction — something builders have not been able to accept. Machado kept talking, however, and was apparently aided by Sen. Darrell Steinberg (D-Sacramento) in negotiations with the California Building Industry Association (CBIA). In the end, the CBIA endorsed SB 5, primarily because its stricter flood control standards do not take effect until 2015 and there is no moratorium in the meantime. In addition, planners and local government officials conceded that they could no longer ignore the fact that levees on which much development relies are known to be inadequate.

The Machado bill contains a number of provisions. Among them are these:

• The Department of Water Resources (DWR) and the Central Valley Flood Protection Board (nee State Reclamation Board) must provide cities and counties with preliminary flood plain maps and the state agencies must adopt a Central Valley flood protection plan by 2012.

• Every city and county in the Central Valley must incorporate the new flood protection plan's data, policies and implementation measures into general plans within two years, and amend zoning ordinances as necessary during the following year.

• Local government may not approve new development in areas that do not have 200-year flood protection unless adequate progress is being made to achieve that level of protection. All areas of new development must have 200-year protection by 2025.

• Cities and counties are authorized to prepare local flood protection plans that include strategies for increasing flood safety, funding strategies, flood control maintenance, and emergency response.

Local governments accepted the legislation because it requires the state to provide the sort of information that local planners and engineers have lacked in the past. Builders accepted SB 5 because it provides a level of flexibility in how local governments achieve the mandatory level of flood protection.

Machado's bill is part of a package of other bills that work together. Assembly Bill 5 (Wolk) overhauls the Reclamation Board and requires DWR to undertake numerous efforts to improve and distribute data. SB 17 (Florez) renames the Reclamation Board as the Flood Protection Board and expands the panel to nine members. AB 156 (Laird) provides for better mapping of area protected by levees and improved coordination for maintenance of the levees. AB 162 (Wolk) requires cities and counties statewide to integrate flood safety into general plans.

The Schwarzenegger administration did not participate actively in any of the Legislature's flood policymaking.

Not part of the package but definitely related is AB 70 (Jones), which makes local governments partially liable when property is damaged during floods. The liability provisions apply to newly developed areas protected by state levees. The intent of the bill is to make local governments more accountable for approving development in areas with questionable flood protection. An Assembly committee bill analysis frames the situation this way: "The question, in short, is simple: When a devastating flood hits the Central Valley, who should be responsible for the ensuing property damage: the state-level actors who failed to provide adequate levees, the local actors who increase the state's liability by locating new developments behind suspect levees, or both to the extent culpable? This bill answers that both should pay a fair and equitable portion."

Unlike other flood bills, AB 70 has a great deal of opposition, especially from local government.

In the area of housing, the most controversial bill from a planning standpoint is AB 414 by Assemblyman Dave Jones (D-Sacramento). The bill allows cities and counties to count only 50% of the housing units possible in commercial zones for the purpose of meeting fair-share affordable housing numbers. The intent of the bill is to prevent local governments from counting for purposes of the regional housing needs assessment (RHNA) all of the housing units that could potentially be built in commercial zones where housing is allowed.

Planners and local government advocates said the bill is contrary to infill development policies and will encourage greenfield sprawl.

"It's just bad planning. It [AB 414] only applies to affordable housing, so it sends those units out to the hinterlands," said Bill Higgins, a lobbyist for the League of California Cities. "The bill doesn't strike the right balance between encouraging housing and protecting the environment. It's a housing-only bill."

But Brian Augusta, a lobbyist with the California Housing Law Project, said Higgins and planners are making way too much of a "very narrowly crafted" bill that does little more than codify the Department of Housing and Community Development's current practices for reviewing housing elements. The problem, said Augusta, is that some cities use dual zoning — mixed-use zoning or commercially zoned areas where housing is permitted — to meet all of their affordable housing obligation. However, the zoning itself contemplates that much of the land will be used for non-housing purposes, Augusta said.

If cities want to ensure residential infill, they can zone for residential development or adopt mixed-use zones that require a residential component, Augusta said.

"The notion that we are somehow driving development out to the greenfields is overreaching," said Augusta. "It's a specious argument. I think they've run out of good arguments."

Another housing bill that received approval this year is SB 2 (Cedillo). It requires cities and counties to identify a location for at least one emergency housing shelter, and to identify zones where shelters are allowed with or without permits. In addition, the bill exempts permitting of emergency shelters from the California Environmental Quality Act. The bill also prohibits cities from imposing additional restrictions on supportive or transitional housing.

In its final version, SB 2 reflected extensive negotiations among housing advocates, planners and cities, and all sides appeared satisfied. However, the Department of Finance remained opposed, calling by-right approval of emergency shelters infeasible. Schwarzenegger vetoed a similar bill last year and a veto appears possible again this time.

What could have been the most important land use bill in many years, Steinberg's SB 375, came to a halt during the last two weeks of the session when the author agreed to make it a "two-year" bill, as requested by numerous interests. The bill sought to tie together regional growth scenarios with transportation planning and funding, with the intent of reducing greenhouse gas emissions. The bill passed the Senate and appeared headed toward the Assembly floor when Steinberg pulled the plug for the year. Exactly why he did so was unclear, but it appeared that arguments that the bill could become a "no-growth" tool held some sway.

Bills approved by the Legislature during 2007.

Flood Control

• AB 5 (Wolk). Assigns new duties to the Reclamation Board and the Department of Water Resources.

• AB 70 (Jones). Makes local governments partially liable for damage caused by Central Valley flooding in newly developed areas.

• AB 156 (Laird). Provides for better mapping of areas protected by state levees and improved coordination among the state and local districts for levee maintenance.

• AB 162 (Wolk). Requires all cities and counties to integrate flood safety into their general plans.

• SB 5 (Machado). Requires the state to prepare a Central Valley flood protection plan and requires local general plans and zoning to comply with the plan by 2015. Requires a 200-year level of flood protection for areas of more than 10,000 people.

• SB 17 (Florez). Renames the Reclamation Board the Flood Protection Board and expands its membership to nine.


Housing

• AB 414 (Jones). Restricts cities and counties' reliance on commercial zones for meeting regional fair-share affordable housing obligations.

• AB 641 (Torrico). Prohibits cities and counties from requiring payment of development fees prior to the certificate of occupancy stage, so long at least 49% of the units in a project are very low- or low-income units.

• AB 763 (Saldaρa). Increases notice that must be provided to residents prior to a conversion of rental property to condominiums.

• AB 1019 (Blakeslee). Establishes a process for reallocating a portion of a county's fair-share housing numbers when a city annexes unincorporated territory. Signed by governor.

• AB 1058 (Laird). Requires the Department of Housing and Community Development and the Building Standards Commission to adopt standards for "green building."

• AB 1259 (Caballero). Extends by one year until June 30, 2009, the housing element update deadline for jurisdictions in the Monterey Bay Area Governments region.

• AB 1542 (Evans). Amends the Subdivision Map Act to impose new requirements on the conversion of mobile home parks to resident-owned subdivisions.

• SB 2 (Cedillo). Requires cities and counties to identify specific sites for homeless shelters and prohibits special restrictions on transitional and supportive housing projects.


2006 housing bond allocations

• AB 1053 (Nuρez). A last-minute bill that makes Anschutz Entertainment Group eligible for $50 million for public improvements in the L.A. Live project in downtown Los Angeles (see CP&DR Places, April 2006).

• AB 1091 (Bass) Alters criteria for awarding $300 million for transit-oriented developments. The projects now must be located within a walkable half-mile route of a transit station, rather than within one mile.

• AB 1460 (Saldaρa). Requires HCD to give preference in the multi-family housing program to infill projects and those using sustainable building practices.

• SB 77 (Ducheny). Allocates $95 million for the transit-oriented development program.

• SB 586 (Dutton). Allocates $100 million for "innovative housing," including $5 million for a construction liability insurance reform program.


Redevelopment

• AB 987 (Jones). Requires redevelopment agencies to record affordability covenants specifying the date on which the affordability restriction expires.

• SB 437 (Negrete McLeod). Requires redevelopment agencies to specify their project areas' time limits in annual reports and five-year implementation plans. Signed by governor.

• SB 698 (Torlakson). Cleans up 2006 legislation regarding eminent domain procedures, with the intent of providing greater protections for property owners.


Other

• AB 373 (Wolk). Overhauls the Mello-Roos Community Facilities District law and the school facilities improvement district law.

• AB 1260 (Caballero). Clarifies Proposition 218's notice and protest procedures for property-related fees.

• AB 1322 (Duvall). Requires Caltrans, when acquiring property by or under threat of eminent domain, to provide the property owner with copies of all appraisals.

• SB 103 (Cedillo). Requires local agencies to prepare a report, conduct hearings and post information on their websites regarding any economic development subsidy worth at least $100,000.

• SB 162 (Negrete McLeod). Requires local agency formation commissions to consider environmental justice when they decide on boundary changes.

• SB 343 (Negrete McLeod). Increases requirements for the distribution of background materials prior to public meetings and mandates that information be posted on local government websites.